The US Court of Appeals for the District of Columbia Circuit (DC Circuit) issued two important air quality decisions during the last week of May. In both cases, the position supported by industry prevailed.

In Center for Biological Diversity v EPA, the DC Circuit refused to find EPA in violation of the Clean Air Act, despite EPA’s admitted failure to revise certain acid rain standards as required by the Act. At issue were secondary standards for sulfur and nitrogen oxides, which EPA admitted were inadequate to protect water bodies from acid rain. The Act requires EPA to set appropriate standards, and the Center for Biological Diversity alleged that EPA’s admission that these secondary standards were inadequate required EPA to issue new standards.

EPA responded, and the DC Circuit agreed, that EPA acted within its discretion when it refused to adopt new standards, because of inadequate data. Rather than try to issue standards, EPA identified data gaps and initiated a program to fill those gaps. The DC Circuit held that EPA’s action, which will delay but not prevent issuance of new standards, was allowed by the Act.

Also last week, the DC Circuit struck down EPA’s inconsistent Title V aggregation policy directive. In a case brought by an industry group, National Environmental Development Association’s Clean Air Project v. EPA, the DC Circuit told EPA that it could not limit the effect of a decision from the US Court of Appeals for the 6th Circuit to only the states subject to that appeals court, and maintain a different policy in the rest of the country.

The 6th Circuit case, Summit Petroleum Corp. v. EPA, addressed EPA’s policy for determining if multiple pollutant-emitting activities are part of a single stationary source, in order to determine if a source is “major” and subject to stricter EPA requirements. The 6th Circuit ruled that EPA must follow its rules, which state that activities must be on adjacent property to be part of a single source. EPA had been taking a more expansive view of its rules, and considered some of Summit’s activities not on adjacent properties to still constitute a single source. The 6th Circuit held that EPA’s expansive view violated the Act, and that EPA must strictly construe “adjacent.”

After the 6th Circuit’s decision, EPA issued its Summit Directive to its regional offices, which said that EPA regions should continue to use EPA policy struck down by the Summit decision, except in those states subject to the 6th Circuit.

The Summit Directive had significant ramifications, especially for oil and gas producing facilities and related infrastructure.

In response, the industry group filed a Petition for Review in the DC Circuit, alleging that the Summit Directive constituted an inconsistent policy on the important issue of Title V aggregation, thus violating EPA’s regulations requiring EPA to assure fair and uniform application of EPA procedures in all regions. The DC Circuit agreed with the industry group, and vacated the Summit Directive.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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